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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia
::

v.
:
No. 1044 C.D. 2000
:
Fraternal Order of Police,
:
Argued: March 6, 2001
Lodge No. 5,
:
Appellant :
BEFORE: HONORABLE DORIS A. SMITH, Judge
HONORABLE DAN PELLEGRINI, Judge
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION BY
SENIOR JUDGE JIULIANTE
FILED: May 29, 2001
On January 17, 2000, an arbitrator determined that the termination of
Philadelphia police officer Lamont Fox (Grievant) was not based on just cause and,
therefore, set it aside and rescinded it. The Fraternal Order of Police, Lodge No. 5
(FOP)1 appeals from the March 22, 2000 order of the Court of Common Pleas of
Philadelphia County (trial court) that (1) vacated the arbitration award to the extent
that it required expungement of any and all records relative to the termination of
Grievant and the matters leading thereto; and (2) confirmed the arbitration award
in all other respects. For the following reasons, we affirm.
The City of Philadelphia (City) employed Grievant as a police officer
from June 22, 1987 until his termination on November 22, 1997. At all times
relevant, Grievant was assigned to the Five Squad of the 14th District, which is a

1 The FOP is the collective bargaining representative of police officers employed by the
City of Philadelphia.

special unit that operates under the Captain's direct command and handles major
crime and special investigations.
On April 20, 1993, a burglary was reported at a leather shop in an area
that had been subjected to numerous burglaries. Due to the frequent occurrence of
burglaries in that area, numerous members of the Five Squad arrived at the scene
of the alarm. There were fourteen to sixteen officers at the scene and a Mr. "J" was
arrested at the scene.
Two officers alleged that Grievant had covered his badge with tin foil
and stood by while Sergeant "V" assaulted the handcuffed robbery suspect inside
the police van in retaliation for the sergeant's pants having been torn during the
arrest. Those two officers, however, were the only two out of the fourteen who
were present at the burglary scene that corroborated the incident.
Grievant was indicted before a federal grand jury regarding his
testimony of the events surrounding that incident, but was ultimately found to be
not guilty. All of the officers that the arbitrator referred to in the award were also
found not guilty of the charges against them.
After several hearings, which included oral and documentary
evidence, the arbitrator discredited the testimony of the two officers, found no
documentary evidence even placing Grievant at the scene2 and found no evidence
that Sergeant "V" ever assaulted the suspect. Therefore, having determined that
the City failed to establish just cause for Grievant's termination, the arbitrator
sustained the grievance.

2 Noting that the City as employer was in possession of daily logs completed by the
officers, the arbitrator pointed out that the City never produced them at the hearing and never
provided them to Grievant despite his request.
2

In addition, the arbitrator ordered that Grievant be reinstated with all
rights and benefits to the position he occupied or would have occupied in the
Crime Lab, but for his termination. The arbitrator directed that Grievant be made
whole for all losses occasioned by the improper termination, including any
overtime that he would have worked. Finally, the arbitrator ordered that all
references to the improper termination of Grievant and all matters leading to that
improper termination be expunged from any and all records.
On February 16, 2000, the City filed a petition to vacate the award,
challenging the award to the extent that it required (1) Grievant's placement in a
specific assignment, the Crime Lab, rather than the general one he held at the time
of termination, police officer; and (2) expungement of all records, including the
Internal Affairs Division (IAD) records. The City did not challenge the arbitrator's
order as it pertained to removing references of the discharge from Grievant's
employment/personnel records, only the IAD records. It argued that it was
prohibited from expunging the IAD records on the basis of the consent decree
entered into in NAACP v. City of Philadelphia, No. CV-96-6045 (E.D. Pa. 1996)
(consent decree). (R.R. 30-73a.)
The September 4, 1996 consent decree indicates that the parties
entered into a settlement and monitoring agreement under the terms and conditions
of the City's response to the NAACP's proposals for reforms within the City's
police department. As per that decree, the City agreed to implement certain
policies, practices and procedures. One of the monitoring and reporting
requirements was that the City provide documents including "[f]inal
determinations of the [Police] Commissioner on IAD investigations as reported on
Form 75-8, with access where necessary to the IAD, PBI [Police Board of Inquiry]
3

and Firearms Discharge Review files and data bases to monitor IAD and firearms
investigations." (R.R. 33a.)
The trial court granted the petition in part and denied it in part. It
vacated the award to the extent that it required the City to expunge Grievant's IAD
records and confirmed it in all other respects.3 Citing as support for its decision the
federal consent decree's provision requiring the maintenance of IAD records, the
trial court concluded that the arbitrator exceeded the scope of his authority in
ordering the expungement of "any and all" records. FOP's timely petition for
review to this Court followed.
The issues before us are whether the trial court: (1) failed to properly
apply the "narrow certiorari" test in reviewing the award; (2) erred in failing to
conform all aspects of the award, including that portion requiring expungement of
all of Grievant's records; (3) erred in failing to conclude that the arbitrator had
authority to order expungement of the IAD records in light of the federal consent
decree;4 and (4) erred in failing to hold that the City waived its arguments
regarding the appropriateness of the remedy by failing to raise the issue before the
arbitrator. As these issues are not mutually exclusive, we will not expressly
address them separately.
Both parties agree that the proper review of an Act 1115 grievance is
"narrow certiorari" as set forth in Pennsylvania State Police v. Pennsylvania State
Troopers' Ass'n (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995). Betancourt
provides that the narrow certiorari scope of review limits a reviewing court to

3 The City subsequently withdrew its appeal of the reinstatement issue.
4 Because we can resolve this case without considering the effect of the consent decree,
we decline to consider that issue.
5 Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§217.1-217.10.
4

questions regarding: (1) the jurisdiction of the arbitrators; (2) the regularity of the
proceedings; (3) an excess of the arbitrator's powers; and (4) deprivation of
constitutional rights. The parties disagree, however, as to whether the trial court
properly applied this standard.
I
The FOP argues that the trial court erred in determining that the
arbitrator exceeded his authority in ordering the expungement of all records
relative to Grievant's termination. The FOP contends that the issue of remedy was
clearly before the arbitrator and that there were no limitations on his ability to
determine an appropriate remedy. See Pennsylvania State Education Ass'n v.
Appalachia Intermediate Unit 08, 505 Pa. 1, 476 A.2d 360 (1984) (arbitrators have
broad powers in fashioning remedies.) It points out that the arbitrator
characterized the issue before him as follows: "Was the termination of Lamont Fox
based on just cause? If not, what is the appropriate remedy?" (Arbitrator's
Opinion and Award at 2.)
Moreover, the FOP points out that a "make whole" remedy
contemplates that an aggrieved employee will be placed in the same position as if
the unjustified discipline never occurred. See generally E. Elkouri & F. Elkouri,
How Arbitration Works at 581-583 (5th ed. 1997). Thus, the FOP alleges that the
arbitrator's order directing expungement of all of the records can hardly seem
excessive, onerous or a per se abuse of his power or authority.
The City contends that the arbitrator exceeded his discretion in
fashioning his own brand of industrial justice because the issue of the Grievant's
records was not mutually or adequately submitted to the arbitrator. It notes that
this Court has expressly held that arbitrators exceed their jurisdiction when they
5

address questions not submitted to them by the parties. City of Philadelphia v. City
of Philadelphia, Fraternal Order of Police, Lodge No. 5, 717 A.2d 609 (Pa.
Cmwlth. 1998) (where issue submitted to arbitrator was whether City had violated
collective bargaining agreement by transferring employee, arbitrator exceeded his
authority in assessing arbitration costs against the City.)
As for the actual issue before the arbitrator, the City alleges that the
sole issue submitted in the present case was whether the City had just cause to
discharge Grievant for his perjury before a grand jury. In other words, whether the
discharge should have been upheld or whether a lesser form of discipline should
have been imposed. In short, it alleges that the arbitrator had the authority only to
determine whether just cause existed and whether Grievant should have been
reinstated to his job, with or without back pay.
After reviewing the record in this matter, we agree with the City that
the parties did not directly submit for arbitration the issue of Grievant's IAD
records and any expungement thereof. We note that the arbitrator in the award
directed the City to expunge all references to Grievant's improper termination and
all matters leading thereto from any and all records. The arbitrator did not specify
what constituted "any and all records," but the parties and the trial court obviously
assumed that he meant to include IAD records, which may or may not have been
the case.
In any event, even though the issue of what constituted an appropriate
remedy was certainly before the arbitrator, the specific issue of whether any
expungement directive should include IAD records was not. Therefore, to the
extent that the arbitrator did intend to include IAD records, we reject that inclusion
as erroneous and decline to construe the award as including an intent beyond the
6

arbitrator's jurisdiction. See Marple Twp. v. Delaware County F.O.P. Lodge 27,
660 A.2d 211 (Pa. Cmwlth. 1995) (arbitrators exceed their jurisdiction when they
consider issues not submitted to them by the parties.)
II
The FOP notes that, in order for an arbitrator to have exceeded his
authority, he must have either mandated an illegal act or granted an award which
addresses issues outside of the realm of the collective bargaining agreement or
beyond the terms and conditions of employment. Township of Ridley v. Fraternal
Order of Police, Lodge No. 27, 718 A.2d 872 (Pa. Cmwlth. 1998), appeal denied,
563 Pa. 636, 758 A.2d 666 (2000). It contends that the arbitrator was wholly
within his authority and that the award did not exceed the purview of that
authority. Moreover, the FOP alleges that every one of the City's arguments
against the broad expungement order have been addressed by the Pennsylvania
Labor Relations Board (PLRB) in Fraternal Order of Police, Lodge No. 5 v. City
of Philadelphia, 30 Pa. Pub. Employee R. 30179 (Final Order, August 17, 1999),
involving Officer DeNoble. (R.R. 25-29a.)
We note that this Court, however, has now rendered a decision on that
appeal. Significantly, this Court reversed the PLRB's decision that dismissed the
City's exceptions and made final the proposed decision and order directing
expungement of an entry in Officer DeNoble's IAD record. City of Philadelphia v.
Pennsylvania Labor Relations Board, ___ A.2d ___ (Pa. Cmwlth., No. 2424 C.D.
1999, filed March 29, 2001) (DeNoble).6
In DeNoble, the police commissioner discharged DeNoble for conduct
unbecoming an officer. Before the arbitrator, the parties agreed to present the issue

6 We note that Judge Rochelle S. Friedman wrote a dissenting opinion to which President
Judge Joseph T. Doyle joined.
7

of whether DeNoble was terminated for just cause. Ultimately, the arbitrator
determined that DeNoble was not terminated for just cause. Thus, he sustained the
grievance and ordered that DeNoble be returned to his former position with the
police department, be made whole in every respect and that his record be expunged
and cleared to the fullest extent. The City did not appeal and reinstated DeNoble
to his former position and expunged all reference to his termination from his
personnel file. The City did not, however, remove the provision in a separately
maintained IAD file that a complaint a sergeant lodged of "drugs found in locker"
was sustained.
The FOP filed an unfair labor charge with the PLRB, arguing that the
City violated Act 111 by refusing to comply with the arbitration award. The City
countered by arguing that the aforementioned consent decree prohibited the City
from expunging DeNoble's IAD records because the decree requires that the City
maintain all final determinations of the police commissioner on IAD
investigations. The PLRB, however, concluded that there was nothing in the
decree that would prohibit the City from complying with the grievance arbitration
award. Thus, it made final a proposed decision and order that determined that the
City had committed an unfair labor practice by failing to expunge an entry in
DeNoble's IAD record.
On appeal to the Commonwealth Court, the City withdrew its
argument that expunging DeNoble's IAD file might render it non-compliant with
the aforementioned consent decree presumably because the decree was filed in
federal court well after the arbitration award. Ultimately, this Court reversed the
PLRB's order, accepting the City's argument that the arbitrator's decision, when
read as a whole, did not indicate an intent to fashion an award reaching beyond the
8

narrow question before the arbitrator, i.e. whether DeNoble's termination was for
just cause. The Court noted that the arbitrator's entire analysis was based upon
accepting the fact that DeNoble mishandled drugs in his locker. Thus, there was
"little reason to suppose that the direction that Officer DeNoble's record be cleared
'to the fullest extent' referred to anything other than the record of termination."
DeNoble, slip op. at 8. In other words, the City was correct in its position that
expunging the IAD record would mean that DeNoble, alone among police officers
who have committed or have been accused of misconduct, would have no IAD
notation.
Finally, this Court stated that it agreed that, if the arbitrator did intend
to order expungement of DeNoble's IAD record, such intent would go beyond the
scope of the question presented to him. Thus, absent an express basis for intrusion
into IAD files, this Court determined that the language of the award should not be
interpreted to indicate intent to affect matters beyond the narrow question of just
cause for termination. Accordingly, this Court held that the PLRB should have
held that the FOP did not meet its burden of showing that the City failed to comply
with the award.
We note that in both DeNoble and the present case, the expungement
of IAD records was not expressly specified. In DeNoble, the directive was that the
officer's records be cleared to the fullest extent. In the instant case, the directive
was that any and all records relative to the termination of Grievant and the matters
leading thereto be expunged. Therefore, in both cases, it was not entirely clear
whether the respective arbitrators meant to include IAD records in the
expungement directives.
9

In any event, given the fact that the arbitrator in the present case did
not specifically designate Grievant's IAD records for expungement and the fact that
the issue of expungement of those records was not clearly before the arbitrator, we
agree with the trial court that, if the arbitrator did intend to include the IAD
records, that directive went beyond his authority.
III
Finally, the FOP argues that the City's challenge to the remedy is
untimely in that it did not raise it before the arbitrator, despite the fact that the
appropriateness of the remedy was squarely before the arbitrator. The FOP points
out that it specifically addressed the appropriateness of the remedy in its brief to
the arbitrator. (R.R. 129a.) Thus, it argues that the City waived any issue
challenging the remedy. See City of Philadelphia v. Fraternal Order of Police,
Lodge No. 5, 677 A.2d 1319 (Pa. Cmwlth. 1996).
To the contrary, the City contends that it was not required to place
before the arbitrator the fact that he could not direct the City to commit an illegal
act. Even assuming that the arbitrator had jurisdiction to consider a range of
remedies, the City contends that he certainly did not have authority to order an
illegal remedy.
Moreover, the City notes that, even though the FOP mentioned the
issue in passing in its post-hearing brief, the arbitrator was provided with no
evidence relating to the issue and even advised the parties during the hearing that
any relief issues would not be addressed during the hearing.7 Further, the City

7 During the hearing, the arbitrator stated that "[i]f I find that the discharge was not based
upon just cause and direct reinstatement and make whole, I shall take the cognizance of what I
have to put into such direction and let's continue along that line." (July 12, 1999 Hearing; R.R.
21a.) The discussion preceding the arbitrator's comment reflects that he and counsel for Grievant
10

notes that because the post-hearing briefs were submitted simultaneously, the City
had no notice that the FOP would be seeking expungement of the IAD records
until after the hearing and submission of the post-hearing briefs.
We conclude that the City did not waive any challenge to the remedy.
As the City noted, the parties' post-hearing briefs were submitted simultaneously
and they did not specifically submit the issue of the status of Grievant's IAD
records to the arbitrator for disposition. Thus, we reject the FOP's argument that
the City waived any challenge to the specifics of the appropriateness of the
remedy.
IV
Having determined that the trial court did not err in vacating the
arbitration award to the extent that it required expungement of the IAD records, we
affirm the court's order, albeit on different grounds.8

JESS S. JIULIANTE, Senior Judge

were discussing what an award should contain in order to make someone whole, e.g. reinstating
someone to the same department. The status of the IAD records was not discussed.
8 It is well established that this Court may affirm on different grounds if we agree with
the result reached by the tribunal below. Burke v. Department of Transportation, Bureau of
Driver Licensing, 733 A.2d 13 (Pa. Cmwlth. 1999).
11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia
::

v.
:
No. 1044 C.D. 2000
:
Fraternal Order of Police,
:
Lodge No. 5,
:
Appellant :
O R D E R
AND NOW, this 29th day of May, 2001, the March 22, 2000 order the
Court of Common Pleas of Philadelphia County is hereby affirmed.

JESS S. JIULIANTE, Senior Judge